Legislative and Regulatory Reform Bill - Standing Committee A

[Mr. Martin Caton in the Chair]

Legislative and Regulatory Reform Bill

Clause 4 - Subordinate legislation

Alison Seabeck: I beg to move amendment No. 22, in clause 4, page 3, line 8, leave out from ‘on’ to ‘unless’ in line 9 and insert ‘any person’.

Martin Caton: With this it will be convenient to discuss the following amendments:
No. 49, in clause 4, page 3, line 9, leave out from ‘otherwise’ to end of line 18.
No. 62, in clause 4, page 3, line 14, leave out paragraph (a).
No. 23, in clause 4, page 3, line 18, at end add—
‘(5)Subsection (1) does not apply to—
(a)provision conferring a function of regulating a profession on a body elected by members of the profession;
(b)provision conferring a function of regulating a trade on a body elected by members of the trade; or
(c)provision conferring on a local authority, within the meaning of section 1 of the Local Government Act 2000 (c. 22), the function of legislating with respect to its area.’.

Alison Seabeck: As a novice in Standing Committee, I am delighted to move my first amendment under your chairmanship, Mr. Caton. I have already stepped out of line during our proceedings, albeit unwittingly, and I hope not to do so again. However, if I say something that is not entirely in order or pop up at the wrong moment, I hope again to receive the benefit of your guidance.
 I shall endeavour to be brief. Having been on the other side of the fence during the Committee stage of the Greater London Authority Act 1999, to which thousands of amendments were tabled—it was the longest Bill since the Government of India Act 1935—I have learned the value of brevity. Indeed, brevity is particularly important in relation to one of the Bill’s aims, which is the speeding up of over-lengthy processes.
I seek through the amendments to probe the Minister’s thoughts on whether part 1, and particularly clause 4, should apply greater constraints when conferring a power on an official body, individual officials, a private company or private individuals. It is legislating in a way that bypasses the normal affirmative and negative resolution procedures for statutory instruments.
The Regulatory Reform Act 2001 did not provide for the sub-delegation proposed in the Bill. In the past, Parliament has delegated powers to outside bodies. For example, the Building Societies Commission was  given substantial powers in the 1980s; but it was answerable to the Treasury, and Treasury Ministers were answerable to Parliament.
Sub-delegation is one of the streamlining procedures designed to speed up the deregulatory process. That is all very well, but it seems that there is scope not only for legislative sub-delegation but for the dropping of constraints from the regulatory reform order procedure in respect of burden and activities. The Minister will correct me if I am wrong, but it appears that a legislative reform order could be sub-delegated to anyone, without that person or group of people being answerable to Parliament. I am sure that the Minister does not mean that power to remain in the Bill.
The Regulatory Reform Committee was concerned about the need to tighten the power of legislative delegation yet allow orders to cover genuine trade and professional regulations and byelaws. I am sure that the Minister will say that there is no intention to give additional powers to inappropriate bodies, but I am concerned about who will decide what constitutes an inappropriate body.
I accept that Ministers never feel comfortable with lists in Bills, as they can be restrictive—in general, I share that concern—but amendment No. 23 contains a list. It is a probing amendment to concentrate the Minister’s mind on some of the groups that could be affected by the clause. I would therefore welcome his consideration of the Select Committee’s special report before ruling out any change.

Oliver Heald: I read amendment No. 23 as saying that Ministers should not be given functions that were previously fulfilled by professions or trade unions—in other words, that if there is no provision and a trade union or a profession regulates itself, or if there is provision for those bodies to regulate themselves, it should not be possible under subsection (1) to take that function from the body and give it to the Minister.

Alison Seabeck: That is an interesting point. It serves to flag up the confusion that exists on clause 4. That is why I am asking the Minister to reconsider the provision and to clarify the matter before Report.

Oliver Heald: I start with amendment No. 22, but I shall make the odd remark about the other amendments; I tabled one, and the Liberal Democrat amendment is likely to be spoken to.
Amendment No. 22 would, as the hon. Lady said, extend the clause 4 test on the conferring of legislative functions so that it applies not only to Ministers but to any person who is given a function under part 1. In effect, amendment No. 49 brings a stand part debate into Committee. The hon. Member for Cambridge (David Howarth) has set out his position and is suggesting that it should not be possible to confer a function of legislating on a Minister of the Crown under section 2(1). I should be interested to hear his introduction to the proposal. It is certainly well worth considering whether it is needed.
However, the amendment could provide conditions on which conferring on the Minister of the Crown the function of legislating would apply. Although we do not like it, it might be in the category of, “It’s better than nothing.” By tabling amendment No. 62, I would delete subsection (3)(a) so that any statutory instrument giving the function of legislating to a Minister of the Crown would have to be conferred by affirmative resolution procedure. It should not be possible to take such action without debate. If I say so myself, that is a sensible proposal. [Laughter.] To confer on a Minister the function of legislating is an important action to take. It is giving an order-making power to a Minister by order, and that should not happen without debate.
I understood that amendment No. 23 was designed to protect professions, trade unions and local government in the sense that it would not be possible to give a Minister order-making functions that are currently in the hands of such bodies. It is a good amendment because it would prevent those bodies from meddling by Ministers. I am inclined to support it, but I am looking forward to what the Minister has to say about this interesting group of amendments.

Martin Caton: Order. As has been said, when dealing with the amendments, we will be debating the substance of the clause. I therefore do not intend to hold a separate stand part debate. Will hon. Members remember that when making their contributions?

David Howarth: I wish to speak briefly to amendment No. 49. Given that the Committee, unfortunately from the point of view of Opposition Members, decided to allow clause 2 to stand part of the Bill, amendment No. 49 is now more of a probing than an operative amendment. However, it allows us to ask the Government why they want to give Ministers such a power. For what purposes is the power granted under the Bill to create in Ministers legislative power, which on the face of it is a fundamental violation of the separation of powers?
Will the Minister tell us precisely what sort of legislation he has in mind? When he does so, we can then table more specific amendments that would allow, as far as they are reasonable, such powers to be given, but do not go as far as the Bill, which will give a general power. The fundamental objection that many of us have to the Bill is that it seems to grant powers that are over-broad and go way beyond any reasonable purpose that the Government might have.
What is the Minister’s understanding of the limits of ministerial power to legislate that can be granted under the Bill? Will any limitations on the use of the powers of the Bill that apply to orders also apply to ministerial legislation granted under such an order? For example, will any parliamentary scrutiny be required of orders made under the clause? It seems to me that the equivalent of a regulatory reform order could be passed, giving a Minister the power to create new law and obligations on the public, and that that power would not be subject to any of the restrictions in the  Bill. For example, such an order could create crimes punishable by more than two years’ imprisonment, increase taxation or create powers of forcible entry.
The Parliamentary Under-Secretary of State for the Cabinet Office (Mr. Jim Murphy)indicated dissent.

David Howarth: The Minister is shaking his head, which is good news. If that is not his understanding, will orders that Ministers might bring be subject to parliamentary scrutiny? That is, will they be subject to negative, affirmative or super-affirmative procedures in the same way that an originating order will be? If so, we need that to be made clear in the Bill. It must be clear that nothing that can be done by a Minister under clause 4 can go beyond the scope of the Bill.

Jim Murphy: I am pleased to have the chance to respond to this brief debate, and I shall try to do so equally briefly. First, the Committee will be pleased to be informed that, arising from our discussion last Thursday on the commitment to introduce a specific power of veto, arrangements have been put in place for us to have conversations with Front Benchers from the Conservative party and the Liberal Democrats on the specific shape of any amendment in principle. I also confirm that responses to the consultation on the Bill have now been placed on the website, as recommended by the Regulatory Reform Committee.
Clause 4 places restrictions on any order that confers a function of legislating on a Minister, by setting out two conditions that must be satisfied. Where the power to legislate is conferred on someone other than a Minister, the conditions will not apply. There are many forms of secondary legislation, not all of which are appropriate for exercise by a Minister. Some matters that are uncontroversial or apply only on a local basis are suitable for legislation by someone other than a Minister. For example, a local authority may be given a power to make byelaws or orders relating to roads. However, where a power to legislate is conferred by order on someone other than a Minister, it must be given to an appropriate person or body, and a suitable level of procedure must be required depending on the nature of the instrument.
 I turn to the points made by the hon. Members for North-East Hertfordshire (Mr. Heald) and for Cambridge, and by my hon. Friend the Member for Plymouth, Devonport (Alison Seabeck). Amendments Nos. 22, 23, 49 and 62 relate to conditions in clause 4 placed on the conferring of powers to make subordinate legislation. I will therefore address those amendments simultaneously.
Amendment No. 49 would prevent orders from conferring powers to legislate on a Minister, but not on someone other than a Minister. That would create an arbitrary restriction on the order-making power and prevent orders from delegating legislative powers that would most appropriately be conferred on a Minister. Of course, sub-delegation is common practice, and because we are considering an enabling power, there are protections, preconditions and procedures in place to ensure that all sub-delegation is considered appropriate. The amendment may be meant to be considered in conjunction with amendment No. 45,  thereby removing the power to confer legislative functions on any person by order. The question of removing the power to confer legislative powers by order falls within the remit of clause 2, which has already been discussed.
As I understand it, the rationale for amendments. Nos. 22, 23 and 62 is to ensure that the Bill’s order-making power to confer powers of legislation is exercised appropriately. The Government have no intention to confer new powers of legislation where that would be inappropriate, or to give them to inappropriate persons or bodies. The amendments would therefore impose an unnecessary degree of inflexibility on the power to sub-delegate legislative functions by order.

Christopher Chope: The Minister says that the Government have no intention to do that in inappropriate circumstances. Where does that appear in the Bill?

Jim Murphy: If the hon. Gentleman will allow me to make further comments, I shall make that point clear.
Amendment No. 22 would effectively require any person given the power to legislate to exercise that power by making a statutory instrument. That SI would be subject to negative or affirmative resolution procedure. A wide variety of persons and bodies are currently given powers to legislate, and it is not always appropriate for legislation to be subject to statutory instrument. The amendment, tabled by my hon. Friend the Member for Plymouth, Devonport, is a probing amendment to seek further information. She brings to this Committee her experience from her time on the Regulatory Reform Select Committee.
The Government feel that to require statutory instrument for all sub-delegation would not be appropriate. Local authorities, for example, must often have powers to make byelaws on local matters, and those powers are generally authorised by the relevant power or authority. Sub-delegation involving local authorities or other bodies of that nature should not have to go through the statutory instrument procedure.
Railway operators are also given powers to make byelaws by the Railways Act 2005. They are not subject to any parliamentary procedure, but must be authorised by the Secretary of State and by traffic authorities, including county councils and Transport for London, which can make traffic regulations orders under section 1 of the Road Traffic Regulation Act 1984. The rationale for the list of proposed exemptions in amendment No. 23 is understandable, but the Government do not consider that providing such a list in the Bill would be a measured response to the issue. It would also inevitably become outdated.
I have reiterated the Government’s commitment not to deliver highly controversial measures by order and not to force orders through in the face of Committee opposition, and I have stated that we will consider the options for veto in the Bill. The Committees would  undoubtedly consider whether the new power to legislate was appropriately conferred and would reject orders that did not meet that standard. I also reassure hon. Members that the Government do not intend by the provision to conduct a review of local authority powers or byelaws. The inclusion of the power is part of a holistic approach to reducing bureaucracy and unnecessary legislation wherever it falls.
Amendment No. 62 seeks to amend the conditions that must be met when a Minister is exercising legislative powers conferred by order. Where the powers must be exercised by statutory instrument, the amendment removes the option of negative resolution procedure. If subordinate measures are particularly minor or technical, it would be valuable to have the option to deliver them by SI, subject to negative resolution procedure. That is already the case in other areas of legislation.

Oliver Heald: The Minister is right that there some minor and technical changes are made to regulations by the negative procedure, although some of them are a bit more substantial than that. The difference is that we are talking about giving the power to make law, which is more substantial. The House has always guarded that power pretty jealously. Is it not concession enough for us to agree, as the amendment would allow, that the Minister may do this extraordinary thing—give a law-making power to somebody and expand it? That is quite a major change. It should at least be debated.

Jim Murphy: The power already exists in respect of sub-delegation. Ministers already sub-delegate to other bodies or individuals. The relevant Select Committees of this place and another place will still have the ability to refer any procedure upwards. Sub-delegation will be subject to the negative, affirmative and super-affirmative procedures and the power of veto.
The veto is the ultimate sanction. If inappropriate sub-delegation were suggested by Ministers, or if Ministers showed inflexibility on suggestions by the Regulatory Reform Committee or from the Committee in another place, the relevant Select Committees could exercise the veto, as we shall see from the discussion that we shall have over the next few weeks about the nature of the veto. The veto is a power that could be exercised over the whole order.
Notwithstanding the point made by the hon. Gentleman, we are confident and comfortable that we have got the balance right, and the Select Committees can make alternative recommendations if it is considered that the Government are suggesting inappropriate sub-delegation.

David Howarth: Obviously, it is difficult for the Minister to address both the clause and the amendment, because the amendment would completely change the nature of the clause. The clause does not at all confer power to legislate on other persons, but on Ministers of the Crown. The question that I should like the Minster to answer is why he believes that Ministers of the Crown should be granted  powers to legislate without going through the statutory instrument process. That is what I understood him to mean.
If that is not what he means, and if any power to legislate by order could allow only that legislation, and subsequent legislation, itself to go through by statutory instrument, then we are fine. The problem is that that is not what the Bill appears to say. The Bill appears to allow power to legislate to be given to a Minister, and for the Minister then to be allowed to legislate further, without any parliamentary procedure at all. I find that disturbing. I hear what the Minister says about procedural protection, and we can talk about that in a while, but the problem is that the scope and purpose of the Bill are so broad that there is no inherent limitation on what Ministers could do.

Jim Murphy: Ministers currently have such powers in a whole series of Acts that are debated and enacted—either themselves or by sub-delegation. Ministers have power to sub-delegate to bodies that are considered appropriate. The difference in the present case is that the relevant Select Committees of the House of Commons, and of the other place, would have the power to make alternative proposals on whether sub-delegation as the Minister suggested would be appropriate—or indeed to veto the whole proposal. I am advised that there must be a parliamentary procedure—either negative or affirmative—for any statutory instrument made by a Minister. I hope that that reassures the hon. Gentleman.

Alison Seabeck: I am pleased to hear from the Minister that the responses to the consultation have been placed on the website. That is a positive response to the Select Committee report.
I remain slightly unclear about what is meant by “appropriate” in relation to amendments Nos. 22 and 23. I have a marginal worry about that, but I take the Minister’s reassurances on board and I note his clear dependence on the proposed veto. Obviously, we want to see what is proposed on Report, but on that basis I shall not press my proposed amendments.

Oliver Heald: Having heard the Minister’s explanations, I think that the area is one to which I need to give further thought. On that basis, I do not object to the hon. Lady withdrawing her amendment, and I shall not seek a separate Division on amendment No. 62.

David Howarth: We are all in the same position. Having heard the Minister’s explanations, we need to go away and think about the implications, so I shall not press my amendments either. However, I should like the Committee to note that the Minister’s position appears to be that the Government will accept no any limitation on the purposes to which the Bill can be put and the subject matter to which it applies. In each of the Minister’s responses, he has relied entirely on the possibility of procedural protection. I am afraid that, from my point of view, that will not be enough; as the Bill goes forward, I will be looking for more reassurance than simply procedural protection.

Alison Seabeck: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 - Taxation

Question proposed, That the clause stand part of the Bill.

Christopher Chope: I have some questions regarding clause 5 that I hope the Minister can answer.
Why are the Government proposing the exemption in clause 5 when almost everything else seems to have been included? Under the clause, does taxation include stealth taxes? Many people regard the power to increase administrative fines and penalties as effectively stealth taxes. Indeed, yesterday, there was a debate on orders that would allow local authorities to impose penalties for what is described as “mass dog-walking”. At the moment, those penalties are limited to £80 per dog, or perhaps per incident per dog. However, it was suggested that that was effectively a stealth tax. As I understand it, under the legislation before us, that could still be introduced as a stealth tax, notwithstanding the provisions of clause 5.

Oliver Heald: My hon. Friend made an important point. I recall that when the Pension Protection Fund was brought into force, the amount that was to be paid into the fund was not called “taxation”, but a “levy”, which raises the question of whether it would be possible, under clause 5, to raise a levy across industry which would not count as taxation. Does my hon. Friend think that the Minister should address that point?

Christopher Chope: I do indeed. The Minister was helpful when he wrote us a letter in which he defined “local Act”. Perhaps he could write us another letter to explain the definition of “taxation”, for the purposes of the Bill, because it is not defined on the face of the Bill. Obviously, that is a controversial area.
The other question that I have for the Minister is regarding the connection between subsections (1) and (2). Subsection (2) states that
“Subsection (1) does not apply to provision which merely restates legislation.”
As I understand it, if legislation restates taxation, the Government have the opportunity to increase those taxes without offending against the provisions in the Bill before us. It seems that the Government could restate legislation and increase taxation at the same time, and not be caught by the provisions in clause 5. Will the Minister confirm that that is an accurate reading and interpretation of the powers that the Government are taking?

David Heath: I think that the hon. Member for Christchurch (Mr. Chope) has done a valuable job for the  Committee in questioning the meaning of “taxation” in the context of the Bill. I have a further two information requests for the Minister.
Many statutory instruments will deal not so much with taxation as with fees and charges, which, if unavoidable, come to the same thing as taxation, particularly local authority fees and charges. If a person is required to buy a plastic bag in which to put their rubbish and the cost of that bag goes up, that is effectively an increase in their tax. For business, that can be a relatively large amount in the context of its turnover. Are we to assume that the word “taxation” includes fees and charges, or not? I suspect that the latter is the case and therefore that the apparent protection there is not as real as it might seem.
The other important point is that there is no provision to prevent an order made on this basis from mitigating any form of credit against tax. In other words, one could reduce a tax credit, which has the effect of increasing tax, but the instrument is silent on that matter. This is a way that the Government very much like to do business: they like to set a tax and then have a variety of complicated measures which reduce the impact of that tax on individuals. Rebates sometimes appear in an election year, for example council tax, and then disappear like the winter snow after the election. That would be an example of a rebate against taxation which it would still be possible to change in the context of the clause in that it does not affect the taxation, but the amount that is given back from tax as a result of an instrument of Government. I should be grateful if the Minister could explain exactly what the scope of the clause is.

Oliver Heald: I have just one point. How does that interrelate with the tax rewrite provisions that have previously been agreed? Clearly we would not want to sanction or agree to a major reform of the law of taxation similar to the tax rewrite proposals being dealt with under this order-making power. We would expect it to continue to be dealt with in the way that it has been. Perhaps the Minister can give us an assurance about that.

Jim Murphy: Again, we have had a brief debate and I will try to address the points that hon. Members have made. Any visitor to our Committee in the last 10 minutes or so might think that they had walked into a Finance Bill debate rather than a regulatory reform debate. This restriction was not in the 2001 Act and it forms a new safeguard to ensure that the power is used appropriately. The restriction in clause 5 is one of a number of restrictions on the power in clause 1. Other topic-specific restrictions are contained in clauses 4, 6 and 7, along with the conditions in clause 3 and the procedural requirements that we have already discussed in some detail, not least the veto principle.
This protection would prevent the imposition of tax under the Bill. There is a standard definition of tax and rather than exchanging different interpretations of any agreed definition of taxation I accept the suggestion  made by the hon. Member for Christchurch and will share with him the acknowledged definition of tax, which has operated through time regardless of which Government have been in power. That is not a contentious request. Fees and charges would not be considered to be taxes under the Bill’s definition. I hope that that reassures the hon. Member for Somerton and Frome (Mr. Heath). Removing a tax credit in the way he described it would appear to be an increase in taxation and so equally that would not be appropriate.
As I said, this protection was not in the 2001 Act and any proposal would have to be part of a statutory public consultation. It is important to emphasise that. The Minister would have to lay an explanatory memorandum and the relevant committees would make a judgment and would have this new veto power. It is a new protection with additional safeguards and I will provide the hon. Member for Christchurch and others with the legal definition of taxation.

Christopher Chope: Will the Minister give way?

David Howarth: Will the Minister give way?

Jim Murphy: I have finished my remarks, but I will briefly give way to the two hon. Gentlemen.

Christopher Chope: I am disappointed that the Minister says he has finished his remarks because he has not addressed my question about interaction between subsections (1) and (2). My reading of the interaction of those two subsections is that the Government could restate income tax law with a new income tax Act, purporting just to be a restatement, but in the same tax Act increase the rates of income tax. If that is not a fair interpretation, why will the power to increase taxation remain even in legislation that is restated?

David Howarth: The Minister has not dealt with the simple point raised by the hon. Member for Christchurch, who asked why taxation is allowed to constitute a restriction on the purposes for which the Bill can be used, but human rights are not. In every other debate the Minister talked about procedural protections and the Committee veto, which is not yet in the Bill, yet the Bill restricts the purposes to which it can be put. Why the distinction between taxation and human rights?

Jim Murphy: I was bringing my remarks to a close, but I will refer to those points. The hon. Member for Cambridge mentioned human rights and as he and other members of the Committee well know, the protection of human rights is contained within the clause 3 preconditions about necessary protections and continuing to exercise any right or freedom, which is the right and appropriate way to deal with the protection of human rights.
I say to the hon. Member for Christchurch that subsection (2) makes it clear that it does not prevent an order merely restating legislation which itself imposed or increased taxation. Restating legislation means replacing legislation with alterations only of form or  arrangement; removing an ambiguity is not restating legislation for these purposes. I hope that the hon. Gentleman finds that helpful.

Christopher Chope: This is a Committee and I hope that there can be an iterative process when matters are still not clear. Is it possible for a restatement of legislation to include a provision for an increase in the rate of tax? It seems in the Bill that it is.

Jim Murphy: The hon. Gentleman asked a straightforward question and I will give him a straightforward answer; no.

Oliver Heald: I asked the Minister if it was envisaged that the tax rewrite programme would in future be dealt with using this provision or whether the current safeguards were to be retained, but he did not address that question.

Jim Murphy: The hon. Gentleman is right; I omitted to do so. I will correspond with him on that specific technical question, certainly before Report. I cannot give him a technical explanation this morning.

Clause 5 ordered to stand part of the Bill.

Clause 6 - criminal penalties

Christopher Chope: I beg to move amendment No. 71, in clause 6, page 3, line 23, leave out from ‘offence’ to end of line 29 and insert
‘or increase the penalty for an existing offence.’.

Martin Caton: With this it will be convenient to discuss the following amendments:
No. 63, in clause 6, page 3, line 25, leave out paragraph (a).
No. 72, in clause 6, page 3, line 30, leave out subsection (2).
No. 73, in clause 6, page 3, line 35, leave out subsection (3).
No. 74, in clause 6, page 4, line 3, leave out subsection (4).
No. 75, in clause 6, page 4, line 9, leave out subsection (5).
No. 64, in clause 6, page 4, line 15, leave out subsection (6).
No. 76, in clause 6, page 4, leave out lines 17 and 18.

Christopher Chope: The amendment would introduce some necessary safeguards and prevent the powers under the Bill being used to create new offences or to increase penalties for existing offences. Responding to the previous debate, the Minister said that as a result of the extra powers being taken by the Government it was reasonable that there should be an increase in safeguards, and he cited clause 5 as such a safeguard. I submit that clause 6 should be drafted on a similar basis to clause 5 covering all increases in penalties for existing offences and the creation of new offences irrespective of the maximum penalty for imprisonment.
This subject was referred to on Second Reading by the hon. Member for Wolverhampton, South-West (Rob Marris) and the Committee is less effective because of the hon. Gentleman’s absence from the Government Back Benches. [Interruption.] As the hon. Member for Cambridge said, he was not selected to serve on the Committee, and I wonder why.
The hon. Member for Wolverhampton, South-West said, in effect, that under the clause as drafted it would be possible for the Bill to be used to increase the maximum penalty for driving while using a mobile phone to 18 months’ imprisonment. It would be possible to incorporate minimum sentences of imprisonment up to two years. The Government have not often taken the route of minimum sentences but it would be possible to introduce a series of minimum sentences as long as they did not exceed two years. Those powers are far too extensive. If we believe in the liberty of the subject why should we not make it incumbent on any Government wanting to increase the penalties or to create new offences to do so using primary legislation?
This morning on the radio there was a bit of what I suppose was Government spin suggesting that the law relating to rape was inadequately defined because not enough people who were charged were convicted, and that the Government might wish to change the system relating to the criminal law covering rape.
If the Government think that when people are charged under the existing law and acquitted it is all rather embarrassing, what hope is there if they decide to amend what they would describe as anomalies or shortcomings using the accelerated procedure? It is impossible to conceive of situations in which any person who was subject to new criminal penalties or offences would not as a result suffer the loss of
“any right or freedom which that person might reasonably expect to continue to exercise.”
I quote from one of the preconditions in clause 3. That short point does not need to be laboured in debate, but I hope that the Minister will explain why he wishes to take these extensive powers and why he is not making criminal offences and criminal penalties subject to the same safeguards as he applied on taxation in clause 5.

Martin Caton: After we have discussed this group of amendments I hope we will have tackled the substance of the clause and therefore will not need a separate stand part debate. I ask hon. Members to remember that when they contribute to the debate on the amendments.

Mark Harper: The explanatory notes to the Bill try to pretend that the limits are the same as they were in the 2001 Act. That is true, but it neglects the fact that the scope of the Bill is much wider than the Act and the restrictions do not apply to the extent that the order implements Law Commission recommendations. We hope that the Minister will comment in detail on the amendments tabled by the hon. Member for Christchurch, which tests the logic of having the restrictions in the Bill, and the reasons for it.
My hon. Friend the Member for North-East Hertfordshire and I tabled probing amendment No. 63 to give the Minister and others an opportunity to comment on the scope to which creating indictable offences, albeit with less than a term of imprisonment exceeding two years, is appropriate and on whether the Bill should really just tackle offences that are amenable to summary conviction.
I shall concentrate most on amendment Nos. 64 and 76 and the Law Commission recommendations. The working programme of the Law Commission on criminal law is considering two very important and controversial matters: provisional proposals for reforming the law of murder—it invites comments on that consultation paper by 13 April—and codifying the general principles of criminal law, considering corporate liability, corporate manslaughter, the law relating to children and incapacity mental disorder. Consultation on those matters will be published during 2006.
Those are both incredibly important areas of law. It seems that any proposals in that regard would, almost by definition, be controversial, especially those affecting the law of murder. They would therefore merit being debated in full along the lines of primary legislation and usual parliamentary procedure. Despite what the Minister said about not wishing to use the Bill for non-controversial measures, it does not say that in the Bill. If the Law Commission made recommendations on those controversial and other areas in the future, there is a danger under the Bill that changes could be made to them by order. We would prefer amendment No. 76 or amendment No. 64 to be implemented as they would remove the Law Commission’s aspects of the proposals. Will the Minister focus on that point and decide either to accept the amendments or draft the Bill a little tighter so that it excludes specifically some controversial policies?

David Howarth: The hon. Member for Forest of Dean (Mr. Harper) referred to two of the points that I was about to make, so I shall not detain the Committee long. To reinforce his argument about the Law Commission, I have every confidence that my former academic colleagues on the commission and their judicial colleagues would not put forward proposals that would be fundamentally destructive to human rights.

Oliver Heald: I just wondered if the hon. Gentleman was referring to Stuart Bridge, who happened to be in my chambers for a period.

David Howarth: Yes, indeed. Among others, I was referring to Mr. Bridge. I am sure that they would not propose measures that would fundamentally violate human rights. Nevertheless, the question is whether their proposal be exempt from the limitation in the Bill in respect of creating new criminal offences punishable  by more than two years’ imprisonment. I cannot see any reason to exempt their proposals from the general limitation of what can be done by order.
My second point concerns why the hon. Gentleman is so worried that the restriction is simply reproduced in the form that it took in the 2001 Act. I am sure that the Minister will say that there is hardly any difference between the Bill and the Act, and ask why worries are being expressed. The difference is that the scope of the Bill is so much wider than the scope of the 2001 Act. We are dealing not only with deregulatory measures that reduce burdens, but with measures that can change any legislation. That is why it is not adequate simply to reproduce the terms of the 2001 Act.

David Heath: I want to reinforce briefly the point that was amply made about the excellent amendment No. 76. There can be no argument that imprisonment beyond two years should in any circumstances be exempt from full parliamentary examination and scrutiny. We cannot substitute the opinion of the Law Commission, however well informed, for the will of Parliament on the liberty of citizens of this country. It is extraordinary that the exemption was even suggested for the areas that we discussing.

Mark Harper: The hon. Gentleman makes a good point. One matter that worries me and which has been mentioned is the danger of giving a wide exemption for recommendations from the Law Commission that would enable controversial measures to be used. That would change the nature of the Law Commission. The Government would be tempted to change its membership and use it as a method by which to legislate in some areas where they could not get measures through the Houses of Parliament.

David Heath: That point is well made. I am always wary of government by expert, however eminent the experts. That is why we have a Parliament. Members are elected to this place to protect the interest of the citizen against the expert who knows best. That is why such protection is so important. It is inconsistent for there to be a general protection in the clause, but for it not to apply to the most likely source of a change in criminal sanction.
My final point is that there is no argument on expedition on this point. There is no good argument that there are not legislative vehicles available to change criminal law. We have a criminal justice Bill and an immigration and nationality Bill every year. We have no difficulty in finding Home Office legislation.

David Howarth: We had yet another one yesterday.

David Heath: Indeed. The police, having been reformed, apparently need reform again this year. One of our difficulties with the queue of criminal justice legislation is that we often amend one piece of legislation with another before the first has even been implemented. That is explicit in the clause’s reference to sections of the Criminal Justice Act 2003, which were a matter of great urgency at the time. I remember staying up until the early hours of the morning to  consider those provisions, yet we find in 2006 that sections have not yet been implemented. So much for urgency and expedition. We have available vehicles for change, and I do not believe that the Minister needs a power to put people in prison for longer than two years through an Order in Council. I hope that he will reflect on that.

Jim Murphy: As hon. Members will know, clause 6 places another limitation on the order-making power in clause 1. It sets the maximum penalties both for any new offence created by an order and for any existing offence for which an order increases the penalty. It maintains the limits in the 2001 Act. However, those limits applied only when the order-making power was used to create a new criminal offence. The limits in clause 6 will apply also when the penalty for an existing offence is increased. Parliament has already considered the limits in the 2001 Act, and as a result they will be amended by the Criminal Justice Act 2003 when the relevant sections of that Act are commenced. The drafting of clause 6 therefore reflects the fact that the limits will remain lower until the relevant parts of the Criminal Justice Act 2003 come into force.
The maximum penalty that can be imposed when an offender is convicted on indictment is two years’ imprisonment. The maximum for an offender convicted summarily is 51 weeks for a summary offence in England and Wales, 12 months for an either way offence in England and Wales, six months in Scotland and Northern Ireland, or a fine up to level five on the standard scale. However, until section 281(5) of the 2003 Act comes into force, the order must provide that for any summary offence committed in England and Wales before that date, any reference to the maximum of 51 weeks must be read as a reference to the current maximum of six months; that is subsection (4).
Until the day on which section 154(1) of the 2003 Act comes into force, the order must provide that for any offence triable either way in England and Wales committed before that day, any reference to the maximum of 12 months must be read as a reference to the current maximum of six months; that is subsection (5). As I have said, that complex provision reflects the position under the 2001 Act following the amendments made by the Criminal Justice Act 2003 that, as has been alluded to, have yet to be commenced.
Subsection (1) does not apply to provisions implementing Law Commission recommendations, about which I will speak in a moment. Such recommendations are based on expert consideration by the Law Commission and extensive consultation. To limit the commission’s ability to make recommendations on appropriate penalty levels would mean that more Law Commission recommendations would not be delivered by order. Due to the pressure on the legislative programme, the proposals might not reach enactment for several years. The Committee has already discussed the fact that, on average, Law Commission recommendations—the ones that the Government actually accept—take seven and a half years to implement.
Amendment No. 63 would mean that orders could create or increase penalties only for offences punishable on summary conviction and not for those punishable on indictment. Crimes tried on indictment will have limits of two years, and the amendment would remove that protection.
Amendments Nos. 71 to 75 would prevent orders from creating new criminal offences or increasing the penalties for existing ones. A number of safeguards prevent orders from inappropriately reforming the law regarding criminal penalties. Orders are subject to public consultation, must meet the preconditions in clause 3 and are scrutinised by the parliamentary Committees. The Government have also made a commitment not to deliver any highly controversial proposals by order.

Christopher Chope: Will the Minister guarantee that minimum sentences will not be introduced under the powers where none exist at the moment, and that retroactive changes will not be made in the criminal law?

Jim Murphy: I shall come to the points that the hon. Gentleman made earlier as well. The most important point is that the limits on criminal penalties in clause 6 have been carried over from the 2001 Act, and there is no evidence that the limits in that Act are too broad or too high. I think the Committee will accept that the hon. Gentleman has not sought to make the case that the powers in the 2001 Act have not operated appropriately, or that there has been concern about the Act. We cannot therefore accept the amendments.
The fire safety RRO amended legislation relating to criminal offences, such as penalties for failing to comply with important fire safety duties. The order modernised the fire safety regime and delivered significant benefits. Amendments Nos. 63 and 71 to 75 could prevent orders from delivering beneficial proposals and are unnecessary, as existing safeguards will prevent orders from delivering inappropriate reforms relating to criminal penalties.
Amendments Nos. 64 and 76 would prevent orders from delivering Law Commission recommendations that would impose criminal penalties above the levels generally imposed by clause 6. Amendment No. 64 goes further, as it would prevent the any orders under clause 1 from merely restating legislation on criminal penalties above those limits. Amendment No. 64 would therefore prohibit orders that would not alter existing criminal penalties but would make the law more accessible and readily understandable by bringing different pieces of legislation together in a single document. That would be an undesirable restriction, and the Government will therefore not accept amendment No. 64.
Amendment No. 76, which was spoken to by the hon. Members for Forest of Dean and for Christchurch, would prevent orders from delivering Law Commission recommendations that would impose criminal penalties above the levels generally imposed by clause 6. That would mean that some well considered and worthwhile reforms recommended by the Law Commission after detailed research and  extensive consultation could be implemented only by primary legislation. However, I believe that Law Commission recommendations that include criminal penalties above the levels specified in clause 6 and that are suitable for implementation by order are likely to be rare indeed.
I also believe that where higher penalties are recommended, they might well make the orders highly controversial and therefore inappropriate for delivery by order. I agree to reflect on amendment No. 76, and on that basis I urge the hon. Member for Christchurch to withdraw it.

Mark Harper: I welcome the Minister’s commitment to look at the matter again. He said just before he concluded that any well considered Law Commission recommendations involving a greater penalty would be rare. If so, to legislate for them in one of the annual Home Office Bills—or, indeed, in criminal law more generally—would not be an incredible burden. That is a serious point that the Minister might want to consider. Given the current Administration and the focus on home affairs legislation, there is effectively an annual Home Office Bill. He might want to talk to his colleagues about that, and it might be sensible to effectively reserve a slot in those Bills for some of the Law Commission proposals. They are all pretty weighty Bills, and that would be a sensible legislative improvement that he might want to discuss with his colleagues in the Home Office.

Jim Murphy: I give way to the hon. Member for Somerton and Frome (Mr. Heath), and then I will conclude.

David Heath: I am grateful, although the hon. Member for Forest of Dean expressed most of what I was going to say in his short speech or intervention.
I am grateful to the Minister for agreeing to reconsider the matter. He might want to reflect on what he said earlier—praying in aid the apparent delay in implementation of Law Commission proposals. It is inconceivable that a Law Commission proposal that increases criminal sanctions and deals therefore with criminal law and serious offences cannot fall within the scope of a criminal justice Bill and is better done by order. There is therefore no harm to the Government’s legislative programme. The delay—if there is a delay—is entirely in the Government’s hands because they have had the legislative opportunity every year to introduce Law Commission proposals in the area of criminal justice. I accept that there might be an argument in civil law, but not in criminal law because there is always an appropriate Bill.

Jim Murphy: In responding to the short speech or long intervention by the hon. Member for Forest of Dean—he made his point, as have others in respect of the Law Commission recommendations—I reiterate that there is a generally accepted difficulty. Across  Governments and time, securing legislative space to implement non-controversial Law Commission proposals—

Christopher Chope: Will the Minister give way?

Jim Murphy: I am about to wind up.
There is a general acceptance that, across time, there is a delay in implementing the important Law Commission recommendations. On average, the ones that this Government accept have waited seven and a half years for implementation. Opposition Members make their own suggestions for how that could be remedied.
I shall say by way of a conclusion, that after giving careful consideration and thought to amendment No. 76 in the name of the hon. Member for Christchurch, I have given an undertaking to reflect on the matter in order to overcome the genuine concerns that have been expressed. I urge him therefore to withdraw the amendment.

Christopher Chope: Some progress might have been made as a result of the amendments that we are debating, but at the fringes only of my submission, because amendment No. 76 would prevent legislation from going through the process by which a maximum penalty is increased beyond two years in prison. That is very much at the extreme end. Even then, instead of accepting the amendment, the Minister has said that he will go away and consider the matter. Obviously I accept that relatively speaking that is good news.
However, the Minister has not responded directly to my request for an undertaking that the powers under clause 6 will not be used to impose retrospective criminal legislation, which is why I sought to intervene. I shall give way to the Minister if he has been prompted to the extent that he can give such an undertaking. Nor has he dealt with the question whether the powers under clause 4 could be used to introduce a series of minimum penalties for offences, thereby removing the courts’ discretion on what level of penalty they should impose. Minimum penalties are being used more often now—for example, for parking and speeding offences—and they are causing an enormous amount of anguish among our constituents. It could be argued that it would be administratively much simpler if all that had to be done was tick a box and send the bill to the person who had committed the offence. There would be no problem about the courts having to consider mitigation, the circumstances of the case or even the particular circumstances of the individual.
I seek an undertaking that the clause will not be used to introduce minimum penalties, but I wait more in hope than expectation for the Minister to seek to intervene to give us those pretty fundamental and basic assurances. I should have thought that that would have been very much in line with his reasoning for almost accepting amendment No. 76. Surely it would be controversial, and an order would not be able to make progress, if we were talking about making retrospective changes in the criminal law or increases in penalties.

Jim Murphy: I do not often seek to intervene, but the hon. Gentleman has tempted me with specific questions. I am not sure that he is going to be pleased with my response on minimum penalties. In a sense it would be appropriate to fix minimum limits for regulatory offences on such matters as health and safety or environmental protection. However, they would have to go through all the procedures of which we have already spoken in respect of protections, vetoes and so on. The limits on retrospectivity in the context of criminal law are appropriately to be found in the Human Rights Act 1998. I hope that I have reassured the hon. Gentleman. [Interruption.]

Christopher Chope: As the hon. Member for Cambridge said from a sedentary position, the human rights legislation could be changed under the Bill.
I am grateful to the Minister for intervening, but I am disappointed to hear that he would use the Bill to introduce a series of minimum sentences. Minimum sentences would effectively remove the courts’ ability to judge cases on their merits and to consider mitigating circumstances. I find that an extremely worrying development. We have at least teased that out of the Minister, but I hope that the Committee will think that it strengthens the argument in favour of removing the power to increase penalties or introduce new criminal offences.
The Minister says that the safeguards are the same as those found in the 2001 Act, but it is puerile to argue that because the Act was circumscribed by the need to find a reduction in burden. That has been taken away from the Bill, as have the safeguards in relation to the super-affirmative procedure, and so on. The Minister may say, “It was all right under the 2001 Act, so it is all right under the Bill,” but that would not be borne out by reasonable men when considering the matter.
The best thing to do is to test the will of the Committee on amendment No. 71. I accept that if the matter were to be the subject of a further Government amendment, it would be some progress, but it would be very small progress in proportion to the great increase in Government powers and their ability to legislate without going through the proper parliamentary processes.

Question put, That the amendment be made:—

The Committee divided:  Ayes 7, Noes 8.

NOES

Question accordingly negatived.

Clause 6 ordered to stand part of the Bill.

Clause 7 - Forcible entry etc

David Howarth: I beg to move amendment No. 50, in clause 7, page 4, line 21, after ‘any’, insert
‘arrest, detention, confiscation of property, compulsory purchase of property or any interference with any right referred to in the Human Rights Act or’.

Martin Caton: With this it will be convenient to discuss the following amendments: No. 65, in clause 7, page 4, line 23, leave out subsection (2).
No. 66, in clause 7, page 4, line 26, leave out subsection (3).
No. 51, in clause 7, page 4, leave out lines 28 and 29.

David Howarth: I should like to refer first to amendment No. 51, which has a similar effect to amendment No. 76. The Minister has just agreed to reflect further on that amendment and I hope that he will do the same for this one. It would remove the exemption for Law Commission recommendations when it comes to the restriction on the purpose of the Bill with regard to forcible entry, search or seizure. I would have thought that the same argument applied to amendment No. 51 as applies to amendment No. 76.
Any Law Commission report that affected forcible entry, search and seizure, which are fundamental rights, would, of necessity, be controversial, if not highly controversial. The same argument applies that it would be inappropriate to use the procedure in the Bill for such a proposal and so such proposals should be introduced only as part of primary legislation. Indeed, in so far as they are matters to do with police powers, the arguments that have been put forward about how many opportunities there are to affect such rights also apply in these circumstances.
The point that the hon. Member for Forest of Dean mentioned about the Law Commission is one that the Minister should take seriously. There is a problem with the Bill as a whole when it deals with the Law Commission. If it becomes apparent to a future Government that an easy way of getting through increases in burdens and reductions in rights of the population is to use the Law Commission route, especially remembering that that can affect the common law, unlike the legislative route in the other part of clause 1, it might well adversely affect the nature of the Law Commission and make it a more political body. Some future Government might be tempted to use the powers they have under the legislation setting up the Law Commission to choose a different sort of commissioner. It might be necessary at some point to insert further safeguards into the legislation that establishes the Law Commission against that sort of political interference if the Bill were to go forward in its present form.
Amendment No. 50 is perhaps our last opportunity to consider the question of restricting the purposes for which the Bill’s procedures can be used. It adds to the list in clause 7 about forcible entry, search, seizure and a whole list of other fundamental civil liberties—not to  be arrested, not to be detained and not to have one’s property confiscated or compulsorily purchased, and a host of other rights that are covered in the Human Rights Act—and protects them from the procedure in the Bill. If there were to be a proposal that would affect those rights, primary legislation would have to be used, not the regulatory order.
The Minister has said several times that the reason why he is not tempted by the restrictions on purpose is that there are already safeguards in the Bill. When I asked him the difference between taxation and human rights he referred me to clause 3, the preconditions clause. But many of us are not satisfied with the state of that clause because it is drafted in such a subjective way. The Minister has to give way either on how clause 3 works or on the purposes to which the Bill can be put if he wants to allay our serious concerns.
In the end the Minister must answer the following questions and he cannot use clause 3 as protection against it. Under what circumstances would the Government bring forward under the Bill an order that affected arrest, detention, confiscation and Human Rights Act rights? Why does not the argument apply that any such circumstances are sure to be those in which it would be reasonable to say that the proposal was controversial? If that is the case, why cannot the Government accept the amendment?

Mark Harper: At the risk of repetition, which has never stopped anyone before, the clause refers back to the 2001 Act. Again, it is not sensible to argue that there were the same protections in that Act because, as we have already said, part of the problem here is that the scope of the Bill is much wider than that Act. As the scope of the Bill is wider, the scope of the protections should be wider too.
Amendments Nos. 65 and 66, tabled by my hon. Friend the Member for North-East Hertfordshire and me, are reasonably similar in nature and have the same thrust as amendments Nos. 50 and 51, tabled by the Liberal Democrats. On amendment No. 65, we welcome the fact that subsection (1) puts restrictions on what order-making powers can be used for, but subsection (2), which allows the extension of such powers, is unacceptable. If it is not appropriate to use order-making powers to authorise forcible entry, search, seizure or the compelling of giving of evidence, it also should not be possible to extend such powers. That should also have to be done by primary legislation. Including the safeguard that the purposes must be similar is so loose a drafting that it provides no safeguard at all. Amendment No. 65 would remove that derestriction and make it clear that order-making powers under section 2(1) could not be used either to authorise forcible entry, search, seizure or the compelling of the giving of evidence or to extend the cases where that may happen.
Amendment No. 66 is rather wider and I am prepared to accept that amendment No. 51 is more narrowly and perhaps more appropriately drafted, which refers again to whether the Law Commissions should effectively make law here. I have one more  point to make on the Law Commissions. It is unquestionably the case that the Lord Chancellor appoints very good lawyers to the Law Commission, but they are not elected by anybody. They come with their own views as well as their legal expertise. It is therefore not appropriate to give them the power to make law. They are the right people to make recommendations and to use their expertise to make suggestions. However, it should remain for this place to make law rather than be governed by experts, especially when such recommendations are particularly controversial.

Martin Caton: Order. Before we continue, let me say that I have been forgetting to indicate whether I intend to have a stand part debate. In this case, most of the substance will be dealt with earlier, so I am hoping that we shall not need a separate stand part debate. If Members could remember that when contributing it will not be needed.

Mark Harper: Briefly, Mr. Caton, I believe I said that subsection (1) of the clause is welcome because of its restrictive effect, but that we would also welcome the removal of the derestriction represented by subsection (2), and that is what amendment No. 65 would do. We are content to have the stand part discussion now.

Jim Murphy: I am happy to be able to respond to the specific points that arose in what was a brief debate.
Clause 7 limits the enforcement powers that can be conferred by an order made under clause 1. Powers of forcible entry, search and seizure and powers to compel people to give evidence may be conferred only in similar circumstances to those in provisions that were already made for that purpose in the legislation being reformed. Those limits have been carried over from the 2001 Act and were also in the Deregulation and Contracting Out Act 1994.
In response to the point made by the hon. Member for Cambridge about amendment of the Human Rights Act 1998, it is clear that the protections in clause 3 would prevent the type of thing that he suggests.

David Howarth: It is an important point, because clause 3 says,
“unless he”—
that is, the Minister—
“considers that the conditions ... where relevant, are satisfied in relation to that provision.”
So we are not talking about whether the conditions are objectively fulfilled, but whether the Minister thinks so. The Minister might think that the Human Rights Act is simply an inconvenience that he can do without, but that would not be the view of other reasonable people or, perhaps, of the courts.

Jim Murphy: The Minister is under a duty and a responsibility to confirm that any order is in line with the Human Rights Act. That assessment is justiciable like any other assessment made by a Minister. The protections are in clause 3, as preconditions.
Although orders cannot create new conditions for forcible entry, search or seizure or to compel the giving of evidence, subsection (3)(a) clarifies that the limitation does not prevent orders from restating legislation containing such provisions. Orders will also be able to reform legislation in the area of enforcement, such as by simplification.
I made a commitment that the Government will not deliver highly controversial proposals by order. As the hon. Member for Forest of Dean (Mr. Harper) commented, the fact that something has been said does not prevent it from being restated, so I shall restate again: in addition to the point about not delivering highly controversial proposals, there are requirements for statutory public consultation, for the Minister to lay an explanatory memorandum and for the Minister’s assessment to be open to legal challenge. The Select Committees, charged by the House with the relevant responsibilities, can oversee and reject specific proposals made by the Minister. The veto that we shall also discuss in some detail before Report is an additional restriction.
The restriction in clause 7 derives from section 3(5) of the 2001 Act. In addition to the current restriction in clause 7(1) on what orders may provide, amendment No. 50 seeks to prevent the authorisation of
“arrest, detention, confiscation of property, compulsory purchase of property or any interference with any right referred to in the Human Rights Act”.
That would be strange to say the least. Like the 2001 Act, clause 6 permits the creation of criminal offences with penalties of up to two years in prison in the appropriate circumstances. Having considered clause 6 and the permitting of the creation of criminal offences with penalties of up to two years in prison, it would seem strange to be able, under clause 7, to create new offences but restrict the ability to arrest or detain anyone.

David Howarth: My understanding is that because of recent legislation, all criminal offences are now arrestable, so I do not think that that point arises.

Jim Murphy: The point, however, is that in clause 6 we have set up an arrangement whereby we are able to create offences, with important limits. My understanding is—I will seek to clarify it—that amendment No. 50 would limit that ability which was already agreed to in clause 6. In addition, of course, the hon. Gentleman’s suggested list takes us back to the conversation about the preconditions in clause 3.
I know that the hon. Gentleman says repeatedly in Committee that the Bill could be used to undermine human rights and even to revisit the Human Rights Act—they might have said that from time to time—but I draw the Committee’s attention back to the preconditions in clause 3 about the necessary protections and not preventing a person from
“continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.”

David Howarth: The Minister repeats his point, as I have repeated the opposite point. Perhaps I should put it slightly differently. When the Prime Minister talks  about the rules of the game having been changed, is he not referring to what the Minister might consider to be a necessary protection that a
“person might reasonably expect to continue to exercise”
as a right? The problem is the subjective nature of clause 3(1), not the particular matters referred to in clause 3(2).

Jim Murphy: I think that it is clear in clause 3 that those protections are in place, and any comment, in this Committee or elsewhere, is superseded by what appears on the face of the Bill. Those protections and preconditions are in clause 3. That is the text that we have before us and the debate that we should be having. Although I understand why the hon. Gentleman makes his comments and sometimes must make them, I contend that he seeks to minimise the protections and preconditions in clause 3.
The two conditions in clause 3 ensure that orders cannot create inappropriate powers to authorise
“arrest, confiscation ... compulsory purchase of property or any interference with ... the Human Rights Act”.
As I have already alluded to, the Minister must give an undertaking, when laying an order, that that order is in line with the Human Rights Act.
Amendment No. 65 provides that orders could not extend existing powers
“for purposes similar to those to which the power applied before the order was made”
to
“authorise forcible entry, search or seizure”,
or to
“compel the giving of evidence”.
That provision derives from the 2001 Act and there is no evidence to support the suggestion that it should be changed.
Removing the provision could prevent worthwhile reforms from being delivered by order. For example, amendment No. 65 would prevent the extension of an existing statutory power to search vehicles or boats for a substance harmful to health to include a power to search buildings for that same substance. The hon. Gentleman has not made a strong enough case that the 2001 Act needs to be changed in that respect. I cannot therefore support amendment No. 65.
Amendment No. 51 would apply the restrictions in clause 7(1) to provisions implementing Law Commission recommendations, preventing the implementation by order of Law Commission recommendations authorising forcible entry, search or seizure or compelling the giving of evidence. Accepting the amendment could mean that well-considered and worthwhile reforms recommended by the Law Commission after detailed research and extensive consultation could be implemented only by a Bill. None the less, I accept that circumstances in which that power might be useful are likely to be limited and occasional. I am therefore willing to reflect further on amendment No. 51.
Amendment No. 66 would have the same effect on Law Commission recommendations as amendment No. 51, but would also prevent the use of any orders  under clause 1 to restate legislation on topics covered by the restriction in clause 7(1). The hon. Member for Forest of Dean was fair enough to acknowledge that point about his amendment’s deficiencies, and accepted that amendment No. 51 would be a much more attractive suggestion.
Amendment No. 66 would prohibit orders that made the law more accessible and easy to understand by bringing together different pieces of legislation in a single order or putting the provisions into plainer language. We hear all too often that the law is complicated or distributed over several sources. Occasionally we need to simplify it or consolidate it to make it simpler for those who are regulated to access the law. That saves time, money and energy, as well as occasional frustration, for those affected by it. I therefore cannot accept amendment No. 66.
Government undertakings and safeguards in the Bill, including the preconditions set out in clause 3, will ensure that the powers described in clause 7 are used appropriately. I agree to reflect on amendment No. 51 and therefore invite the hon. Member for Cambridge to withdraw it, but I cannot support amendments Nos. 50, 65 and 66, which would restrict the 2001 Act and could unnecessarily rule out the delivery of beneficial reforms by order.

David Howarth: I am grateful for the Minister’s offer to reflect on amendment No. 51, which works as a pair with amendment No. 76, on which he also agreed to reflect. I hope that he will reflect on the Bill’s possible effects on the Law Commission’s work and the long-term consequences of relying heavily on Law Commission recommendations in that way.
I return to amendment No. 50, however, on which I should like to press the Committee to a Division. The Minister’s defence fell into two categories. One was an argument about the effect of the amendment on powers of arrest. As I said in an intervention, I do not accept that. My recollection is that due to recent legislative change, all offences are now arrestable. Therefore, any new offence created would also be arrestable. I do not think that that is a problem.
More generally, the Minister’s defence mentioned the protections provided in the rest of the Bill. On that matter we simply disagree. The most fundamental question is the effect of clause 3. He seems to be saying that if a Minister acting under clause 3(1) said that he considered that the preconditions in clause 3(2) had been satisfied, and if that Minister was wrong in a way that violated the Human Rights Act 1998, that in itself would be a violation of the Human Rights Act. I hope that that is correct, but it is a new idea to me that considering something might be a violation of the Human Rights Act. Normally, the Act is violated when people do things rather than consider them. That does not seem a sufficient protection.
Furthermore, if that is the Minister’s understanding of how clause 3(1) works, I am surprised that he did not mention it when we talked about clause 3(1) earlier. That would have been an interesting and perhaps acceptable basis on which to discuss an  amendment to clause 3(1). It is a tempting option to put forward such an amendment on Report. I shall press amendment No. 50 to a Division, but in view of the Minister’s offer to reflect on the terms of amendment No. 51, I no longer intend to press thatQuestion put, That the amendment be made.

The Committee divided:  Ayes 5, Noes 8.

NOES

Question accordingly negatived.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Scotland

Mark Harper: I beg to move amendment No. 67, in clause 8, page 4, line 32, after ‘(4)’, insert
‘and pursuant to a resolution of the Scottish Parliament’.

Martin Caton: With this it will be convenient to discuss amendment No. 68, in clause 9, page 4, leave out line 40.

Mark Harper: The clause generally precludes the possibility of making orders under the Bill that fall within the legislative competence of the Scottish Parliament, apart from those made under clause 2(4), which will be orders that
“make such consequential, supplementary, incidental or transitional provision ... as the Minister making it considers appropriate.”
To what extent does the Minister feel that the Sewel convention, with which I am sure he is familiar, should relate to orders under clause 2(4)?
For those who are not familiar with it, the Sewel convention effectively says that the Westminster Parliament will not legislate on matters devolved to the Scottish Parliament, even where it has the power to do so, unless the Scottish Parliament gives its consent. It is an agreement not between Parliaments but between the Scottish Executive and the UK Government, but it has typically been held to. Does the Minister propose that it should apply under section 2(4)? If not, what are his reasons? The Sewel convention is not set out in statute, but will he set out why he feels that it does not apply under clause 2(4)?

Jim Murphy: Are we considering amendments Nos. 67 and 68?

Martin Caton: Yes, we are.

Andrew Love: I also seek clarification, Mr. Caton. Amendment No. 68 refers to clause 9, which is separate from clause 8.

Martin Caton: This is not the first time that the Committee has considered amendments that deal with different parts of the Bill in common debate. Clearly, we cannot vote on the amendments except when we are dealing with the appropriate clause, but we can debate both amendments Nos. 67 and 68 now. When we come to the voting, we will do it in the proper procedural order. There will also be a clause stand part debate on clause 9.

Mark Harper: In that case, I shall say a word or two about amendment No. 68 to clause 9, which refers to the Welsh Assembly. Because it would be a significant constitutional change, the clause as drafted rightly states:
“An order under section 1 may not make any provision—
(a) conferring a function on the Assembly,
(b) modifying or removing a function ... or
(c) restating any provision ... except with the agreement of the Assembly.”
That means, in effect, that if the Assembly agrees that it wants lots more powers or wants to change significantly the powers that it already has, the Minister could use an order to make those changes. That seems rather strange. The recent Government of Wales Bill was considered a significant constitutional measure and was therefore taken at length on the Floor of the House. It is odd that if, under the clause as drafted, the Assembly decided that it wanted lots of powers or to change them, the Minister by order could make such changes, when we have just decided that such changes need to be discussed at length on the Floor of the House because they are significant constitutional changes. Amendment No. 68 would leave out line 40, which would get rid of the provision that states that if the Assembly agrees, the Bill can be used to make the orders. The clause, as amended, would then make it clear that orders under clause 1 could not change the scope of the Welsh Assembly’s powers. That would be a significant, and necessary, change to the Bill.

Christopher Chope: Mine is more a stand part point. If we are to have a separate debate on clause 8 stand part, I will reserve my remarks until then.

Martin Caton: There will be a separate debate.

Jim Murphy: I think I know where we are, Mr. Caton—Committee Room 12. On clause 8 stand part and our discussion on amendments Nos. 67 and 68, clause 8 places a restriction on what orders can do in relation to Scotland.

Martin Caton: Order. Forgive me, but we are not debating clause stand part. There will be a separate debate on clause 8 stand part and, indeed, on clause 9 stand part. The debate is specifically on amendments Nos. 67 and 68.

Jim Murphy: Thank you for that helpful steer, Mr. Caton. I think I am the only Scot here, except for my hon. Friend the Member for Ochil and South  Perthshire (Gordon Banks). I do not know whether there are any Welsh Members on the Committee, but I will obviously accept interventions from my hon. Friend, partly because his constituency is a lot closer to the Scottish Parliament than mine.
Clause 8 places restrictions on what orders can do in relation to Scotland. The hon. Member for North-East Hertfordshire and others tabled amendment No. 67, which I suspect is a probing amendment. I confirm that we would consult with the Scottish Executive if we sought to make—

Mark Harper: If I could make a helpful intervention, amendment No. 67 would put the civil convention in the Bill. It was tabled to discover why the general prohibition on using powers under the Bill that affected devolved areas did not apply to the powers under clause 2(4) when they apply to the rest of the Bill.

Jim Murphy: That is helpful. As the hon. Gentleman knows clause 8 provides that an order may not make provision which is within the legislative competence of the Scottish Parliament. It reflects the usual position in relation to Scottish devolution, whereby it is for the Scottish Parliament to legislate on devolved matters. The exception, as the hon. Gentleman knows, is set out in clause 2(4), which enables a Minister to make such consequential, supplementary, incidental or transitional provision as he considers appropriate. There is no restriction on making such a provision in relation to Scottish legislation or to Westminster legislation within the competence of the Scottish Parliament.
 An example of when the ability to make such a provision would be helpful is when an order restates a piece of Westminster legislation to simplify it and, in doing so, renumbers some of the provisions. If a Scottish Act cross-referred to those provisions, the changes to the numbering made by the order would mean that the Scottish Act referred to the wrong provisions. However, the order itself could be used to tidy up the Scottish Act by updating the references in the Act, so that they referred to the correct provisions. It would mean that there was no need for the Scottish Parliament itself to legislate to bring about the consequential amendments that were needed. That position has been agreed with the Scottish Executive. If, however, at any point we sought to make such orders, there would be further consultation with the Scottish Executive.
The situation reflects the devolution settlement as well as the position under the 2001 Act. The Committee may wish to know that matters are set out in devolution guidance note 10 from the Department for Constitutional Affairs. I reassure the hon. Gentleman that there would be continued consultation between the United Kingdom Government Department and the Scottish Executive. We believe that there would not be a need for a separate motion of the Scottish Parliament for the consequential tidy-up to which I have alluded. That has been agreed with Ministers in the Scottish Parliament.
I turn now to amendment No. 68. The provisions of the Bill for Wales are broadly similar to the powers of the 2001 Act. The amendment would mean that an order could not confer, modify or restate a function of the Assembly. Clause 9 makes it clear that, in all the situations listed, the Assembly’s agreement must first be obtained. However, as well as obtaining the Assembly’s agreement to proposals, all the other safeguards apply to an order that affects the Assembly’s functions. Additionally, the preconditions and the procedural protections that we have already talked about in some detail—it is almost as though they are repeated in each clause stand part debate—in connection with statutory public consultations, relevant Select Committees and the principle of a right to a veto would also be in place. Accepting the amendment would prevent orders from doing what orders under the 2001 Act can currently do, and that is clearly unacceptable.
Line 40 of the clause, to which amendment No. 68 refers, means that the Welsh Assembly’s permission would be sought in advance of conferring on it new powers or responsibilities. The amendment is unnecessary. We shall respect the devolution settlement, which is set out in devolution guidance note 10 of the DCA. Amendment No. 68 would prevent us from seeking the Assembly’s agreement for conferring on it additional responsibilities. I urge the hon. Member for Forest of Dean to withdraw his amendment on the basis of my comments.

Mark Harper: Amendment No. 67 was very much a probing amendment. The Minister has made the Government’s position clear. I shall not press the amendment to a Division.
I am still not clear about clause 9. One of the reasons for the repetition is that we are not convinced that the protections and procedures under the Bill are adequate. Agreement has been reached between the Front Benches that there will be discussions about the veto powers, but the difficulty is that, because they have not taken place in Committee, it is still necessary for us to repeat such matters at each stage that we are worried about because we have not reached agreements. If agreements had been made earlier, we would not need to have repetitive discussions. The flaw is that, if the Assembly agrees, the Bill enables the Minister to make significant changes. He is right, if one reads and agrees with his interpretation of the preconditions in the procedural safeguards. If one does not agree with it, and we have our concerns, the Bill without our amendment allows significant constitutional changes to be made. Having said that and given that the Minister said that we shall discuss the veto powers—there is always the option of tabling further amendments on Report if those discussions are unsuccessful—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.

Christopher Chope: I wonder whether the Minister can help us. Clause 8 envisages making legislation outwith the legislative competence of the Scottish Parliament, using the accelerated procedures outlined in the Bill. I cannot understand in what circumstances the Government should wish to use those procedures, when they have already accepted that it would be wrong to delegate such actions to the legislative independence that is part of the Scottish devolution settlement. If we cannot trust the Scottish Parliament to deal with it, why should we trust ministerial edict rather than the full UK parliamentary procedure with primary legislation? I would be grateful if the Minister could give some examples of where he thinks that the provisions in the Bill will be used for legislation that is outwith the legislative competence of the Scottish Parliament.
The Regulatory Reform Committee produced a helpful checklist on page 20 of its report. It said that specific limits on the powers of the Scottish Parliament are set out in statute. The Committee’s argument, which I support and which is the subject of a Liberal Democrat amendment, is that there should be exemptions in which the Bill should not operate.
In summary, the only limits on the powers of the Scottish Parliament and Executive is that they
“cannot enact provisions incompatible with the European convention on human rights or modify the Human Rights Act 1998; they cannot enact provisions incompatible with European Community law ... ; they cannot legislate in respect of the Crown; they cannot legislate in respect of Parliament; they cannot legislate in respect of the Union of Scotland and England; they cannot legislate in respect of the senior Scottish courts; they cannot legislate in respect of the registration and funding of political parties; they cannot legislate in respect of international relations; they cannot legislate in respect of the civil service;
they cannot legislate in respect of defence; they cannot legislate in respect of treason.”
If the Scottish Parliament cannot do that, in what circumstances does the Minister think that the UK Parliament should be able to do that using the powers in the Bill? As one would say if one were a university lecturer, “Please give examples with your answer.”

David Howarth: I shall add to the hon. Gentleman’s points an additional point that brings us back to a point that we made previously: since the Bill can apply to the Scotland Act 1998, the legislative competence of the Scottish Parliament can be changed by order under this Bill. Although the Minister will say that it is a controversial matter, that it will not be brought forward under the Bill and that there are protections in the Bill against it, it is still a serious aspect of the debate about the Bill’s powers and those that it gives Ministers. The Bill allows structural change by that mechanism.
My only other point, which I could easily make under clauses 8 or 9 is a point that my hon. Friend the Member for Somerton and Frome (Mr. Heath) was going to make. Unfortunately, he cannot be present  for this part of the debate. Why are there clauses about Scotland and Wales, but none about Northern Ireland? Is that a gap in the Bill that the Government intend to fill on Report?

Jim Murphy: The hon. Member for Cambridge asked me about the ability to change the Scotland Act by order. I live in Scotland for three days of the week and for all of the summer when this place is in recess. The idea that we could make any meaningful change to the Scotland Act by order without it being entirely controversial is an interesting assertion. As I said, clause 8 allows us to make consequential, supplementary, incidental or transitional amendments to Acts of the Scottish Parliament. For example, Acts of the Scottish Parliament refer to UK legislation from time to time by way of referencing and numbering. If there were a change to UK legislation, the clause would allow a consequential tidy-up by renumbering and referencing changes to such Acts. That is important, because Acts of the Scottish Parliament would otherwise be incorrectly referenced. The provision will create a minimum of confusion and is an important tidy-up and protection.
The idea that we should have a separate motion of the Scottish Parliament whereby all 129 of its Members would be asked to vote on consequential amendments on referencing and numbering is not an appropriate way to go. The Scottish Executive have not requested it, and I am not aware of the Scottish Parliament having requested it either. The clause represents a sensible way to progress with consequential amendments and tidy-ups.
On the point made by the hon. Member for Cambridge, I am advised that clause 1(3) excludes Northern Ireland legislation.

Christopher Chope: The Minister has addressed his remarks to clause 2(4), which relates to matters within the competence of the Scottish Parliament. Clause 8 will enable the Government to legislate on such matters where they are pursuant to clause 2(4). My question was about matters that are not within the competence of the Scottish Parliament. I asked the Minister whether he could give a specific example of such matters that he envisages legislating on using the powers in the Bill.

Jim Murphy: I apologise to the hon. Gentleman—I should, of course, have addressed his point. An example of legislation outwith the competence of the Scottish Parliament is that the Bill could enable the implementation of the recommendations in the joint report by the Law Commission and the Scottish Law Commission on the Third Parties (Rights Against Insurers) Act 1930. That would be an example of the order-making processes mentioned on page 19 of the explanatory notes to the Bill. I hope that that is helpful to the hon. Gentleman.

Question put and agreed to.
Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

David Howarth: I beg to move amendment No. 52, in clause 10, page 5, line 12, at end add—
‘(3)A Minister may not make an order under section 1 where, within the 21 day period, fifty members of the House of Commons signify to the Speaker in writing that they object to the use of this Act to make the order.’.

Martin Caton: With this it will be convenient to discuss the following amendments: No. 53, in clause 10, page 5, line 12, at end add—
‘(4)A Minister may not make an order under section 1 where, within the 21 day period, either House of Parliament resolves that it objects to the use of this Act to make the order.’.
No. 54, in clause 10, page 5, line 12, at end add—
‘(5)A Minister may not make an order under section 1 where, within the 21 day period, a committee of the House of Commons charged with reporting on the order resolves that it objects to the use of this Act to make the order.’.

David Howarth: We now come to the third way in which the Bill can be restricted so as to become less dangerous.
We have already looked at attempting to restrict the Bill in terms of the potential purposes of orders that could be made, and the Government have resisted every such attempt. We also discussed—at great length—subject-matter restrictions, whereby the Bill could not be used to change particular areas of law or particular statutes. With the possible exception of matters concerning the Law Commission that we have discussed this morning, the Government have been unwilling to accept any substantial change of that type. That leaves only procedural protections.
The Minister has already indicated that he is prepared to negotiate on what has been called the Committee veto, which is the idea that a Committee of the House could somehow reject an order made under the Bill. Amendment No. 54 is a possible draft of such a Committee veto, and I am interested to hear the Minister’s view of the proposal.
First, it says:
“A Minister may not make a order under section 1 where, within the 21 day period, a committee of the House of Commons ... resolves that it objects to the use of this Act”
for a certain purpose.
The reason that it refers to the power of the Minister is to make it very clear that we are talking about what Ministers, not Parliament, can do. In turn, that would make it clear to the courts that they would be empowered to intervene in such a case.
Secondly, the amendment refers to
“ a committee of the House, charged with reporting on the order”.
That leaves open how the House carries out the task, because I do not think that it is appropriate for legislation to instruct the House of Commons on how to organise itself internally, and in the amendment we have striven to avoid that as far as possible. I should appreciate the Minister’s thoughts on how best to proceed with such an amendment.
The third element of the amendment is that the resolution would be one whereby the Committee
“objects to the use of the Act to make the order.”
That is, it would not necessarily have to object to the substance, but it would be objecting on the grounds that the proposal should be the subject of primary legislation rather than statutory instrument. That is the fundamental issue—how things are done, rather than just what they are. Our fundamental objection to the way that the Bill works is that it allows too many changes to legislation to be brought in by statutory instrument rather than primary legislation. The Committee of the House would be invited to make a judgment on that issue.
Amendment No. 53 addresses an obvious gap in the way in which the Bill currently works—the fact that the House itself cannot resolve that the Bill should not be used for a particular order. Throughout the debate the Minister has talked about Committee vetoes and rejections of proposals by Committee, but so far not only has that not been in the Bill, but the power of the House to reject has not been in the Bill either.
 The lead amendment, amendment No. 52, goes some way beyond what the Minister has agreed so far, and in many ways is the crucial amendment in the group. The problem with a Committee veto is that Committees of this House reflect the state of the House itself, and therefore every Committee has a majority of Government Members. It is true that Committees of the House tend on some occasions to act in a more considered way than the House itself, and it might be easier to persuade Committee members to reject a proposal than to persuade the House as a whole.

Andrew Love: In amendment No. 52, the hon. Gentleman uses the number of 50 Members. I can see why 50 would be an appropriate figure when compared with the number of Liberal Democrat Members of the House, but can he give some constitutional precedent for his use of that number?

David Howarth: I am prepared to talk to Committee members from all parties about what that number should be. One possible way forward is to say that it should be 10 per cent. of the number of Members of the House, which would make it 65 if we round up rather than down. The number that I am putting forward is well in excess of the number suggested by the hon. Member for Christchurch in his definition of “controversial”, which said that it would be enough if any Member objected. The number 50 is a pretty large concession to begin with.
One problem is the built-in Government majority on any Committee. The other problems are the ease with which Committee membership can be changed and the influence of the Government Whips on that membership. The hon. Member for Christchurch has referred to the absence from this Committee of the very distinguished hon. Member for Wolverhampton, South-West (Rob Marris), which illustrates the power of the Whips in Committee selection. The Committee  veto is far from an absolute guarantee that the powers in the Bill will not be used in what Opposition Members consider to be an inappropriate way.
In addition, the long-term nature of Select Committees might be a problem if they become part of the legislative process. Select Committees work in a largely consensual way, focusing on the topic to be discussed rather than the political positions of the parties within the Committee. If the Select Committees became a regular part of the legislative process, it would attract the attention of the Government Whips in a way that would be detrimental to how Select Committees work, and might even be the end of the Select Committee system as we have come to know it. It would make Select Committees into versions of Standing Committees, which would be an undesirable development.
Amendment No. 52 would cure those defects in the proposed Committee veto. The method is familiar in many walks of life from local government to company law: giving a certain number of members of the institution the collective power to halt a particular process. We are not proposing that 50 Members of the House—or whatever number of Members we might eventually agree—should be able to prevent legislation from passing. We are simply proposing that a certain number of Members should be able to object to legislation by statutory instrument under the Bill. That would provide the sort of guarantee that we have been looking for.
The amendment would avoid another problem: the consensus of the Front Benches. During my short time in the House, I have observed quite often that the “usual channels”—marvellous not to behold—achieve a great number of things. They work towards the smooth working of the institution, but they sometimes do things that are not necessarily in line with the view of Back Benchers, either on the Government side or in the Opposition parties. The mechanism in the amendment would put real power in the hands of Back Benchers, which would be a useful development in itself. It would change the relationship between the Front and Back Benches in all parties.

Andrew Love: I thank the hon. Gentleman for his kindness in giving way. His approach is entirely too pessimistic. In the previous Parliament, there was a form of what I would call quasi-pre-legislative scrutiny in which, because of the onerous consultations and other mechanisms that had to be undertaken, Departments would speak to the Regulatory Reform Committee before any proposal was introduced. There was an opportunity for the Committee to take a view as to whether it would be an appropriate order to introduce. Does the hon. Gentleman accept that there are informal mechanisms that will protect against his worries?

David Howarth: I accept what the hon. Gentleman says. That is the way it has worked so far, given the terms of the 2001 Act. However, the problem we keep returning to is that the terms of the Bill are so much more extensive than those of the 2001 Act that we require more formal, on-the-face-of-the-Bill  protection. Informal agreements have no legal effect. If we are asked to accept assurances on the basis of trust, we have to accept that the problem with such an approach is that we have to trust the Government—not necessarily this one, but some Government in the future—not to act in a particular way. If they were to act in such a way and ignore the informal conventions on a particular occasion, the resulting instrument would have the force of law. We are trying to avoid that by writing into the Bill procedures to prevent the Government from claiming that the product of the process is as good as an Act of Parliament in circumstances where that should not be the case.
I want the Committee to include a kind of safeguard that would go a long way to reassure those of us in my party who are very disturbed indeed about the breadth of the Bill and the breadth of the purposes to which it could be put. Procedure, in the end, is only as good as the people involved in operating it. I accept that, and it would be better to have those other protections on purpose and subject-matter as well. Nevertheless, procedural protections are valuable in themselves and I recommend the amendment to the Committee.

Martin Caton: This is another clause whose substance we can deal with during the debate on the amendments. I hope that we will not need a separate stand part debate. If any Member wants a stand part debate, could they please indicate that during any contribution that they make on the amendments?

Mark Harper: I would like to touch briefly on amendments Nos. 54 and 53. The hon. Member for Cambridge is right about amendment No. 54: the danger with putting all of the onus on Committees is that Committee membership is determined by Whips and can be influenced by them. The hon. Member for Edmonton (Mr. Love) is quite right to say that the procedure has worked well in the past, but, as we keep saying, the scope of the Bill is tremendously wider than the 2001 Act, so I do not think that the same protections will work. Amendment No. 53 has more substance in the sense that either House of Parliament can object to the use of the Act. That means that in the other place, where there is a significant number of Cross Benchers and the House is not as amenable to being guided, there might be more significant protection.
I am not entirely happy with the way that amendment No. 52 is drafted. I think that what the hon. Member for Cambridge is getting at is that the amendment is in lieu of the lack of a definition, on the face of the Bill, of what is controversial. The Minister has said on many occasions that the Bill would not be used to introduce controversial measures. The amendment says that the definition of a “controversial measure” is one to which more than 50 Members of the House of Commons object. That effectively is what the amendment says.
As has been said, that is a significant concession compared with the proposal by my hon. Friend the Member for Christchurch, which was that if just one Member objected the measure would be  “controversial”. He made that proposal because local Acts fall within the powers under the Bill. As the Minister outlined in his letter on the definition of “local Acts”, that could incorporate legislation that only affects small parts of the country, and those could be issues about which only one Member was concerned.
The amendment would define controversy—if more than 50 Members of the House of Commons object, the measure would be deemed controversial. Alternatively, if the Minister does not accept the amendment—I suspect that he will not—we could put on the face of the Bill a definition, which could be discussed and agreed, of “controversial”. A definition on the face of the Bill of “controversial” and “non-controversial” would have the same substance as the amendment. Perhaps that would be a helpful way of looking at the issue.

Christopher Chope: This is effectively the first stab that we have had at the issue of a veto. The Minister has said that he will come forward with some ideas that he will discuss with the Front Benches, but sadly not with all members of the Committee.
The Minister wants to discuss proposals for a veto. The hon. Member for Cambridge, who moved amendment No. 52, has had a go at that, and we should congratulate him on doing so—although he is willing to say that 50 might not be the right answer. I think that the idea inherent in his suggestion is probably the best way forward. Let us recall that there used to be a time when what we blandly call “statutory instruments” and “affirmative resolution instruments” were dealt with on the Floor of the House.
On the basis of those matters being dealt with upstairs in Standing Committee, not just the members of that Committee but other Members were allowed to come along and speak. However, it is almost unheard-of for the Government to be defeated on such statutory instruments, which shows what powerful tools they are in the hands of the Executive, and how much power was lost to ordinary Members of Parliament when that procedural change was made.
Here we are talking about areas in which the Government say, “Trust us because we are all in it together. We want to deregulate; we hate the administrative burden of bureaucracy and if the law is too complicated, let’s make it easier for people to understand, and reduce the costs and burden on business.” If that is the objective, and what legislation introduced under the Bill will generate, what is the problem? There will not be a problem because that Member or group of Members who get up and say that they want to block a piece of legislation—for some sort of procedural fun—will be made to look foolish in the eyes of the public.
Indeed, if they continued to do that for no good reason, the procedures might be changed, as has happened in the past. I am told that even at this very moment the Government, with all their talk about giving power to Parliament and Back Benchers, are thinking seriously about limiting the ability of Members of Parliament to table as many written parliamentary questions as they wish. I hope that the  Minister will tell us that the Government would never think of doing that and that the situation that I describe will not emerge, but I have it on quite good information that the Government may be actively talking about such a proposal. Where does that stand with the idea of trust and doing only those things that are non-controversial or “not highly controversial”, to use the Minister’s chosen phraseology?
If proposals are innocent and receive the support of the relevant scrutiny Committee, there will be no problem. However, if the Executive are given this draconian power and it is used, as we fear that it will be, to promote their will at the expense of parliamentary democracy and debate, it will be so much easier for the Government to bypass the process, and we heard earlier how trying the Minister finds debating points. If proposals are controversial, and 50 Members of Parliament—to take the suggestion made by the hon. Member for Cambridge—think that the scrutiny of them should be more intense, who is the Minister to say that it is unreasonable of those Members to seek to veto the process by which this democratic House of Commons considers those proposals? I therefore hope that he will tell us in due course that amendment No. 52 is the basis for introducing an effective veto into the Bill to give power back to Back Benchers—or at least reduce the amount that this procedure would take away—and to introduce important safeguards.
 As the Minister will know, the full implications of legislation often become apparent only when it is subject to scrutiny. How many times have Government officials not realised the full implications of what they have written down? Even Parliamentary Counsel has drafted great big Bills, only for somebody to ask, “What are the implications of that? What does that mean?” and that has led to whole series of Government amendments. Even when legislation has been carefully considered by the Government and the counsel who drafted it, it is often defective and produced in a cavalier way.
If the Government are indeed going to resist amendment No. 52, why are they suggesting that we disregard 50 Members of Parliament who think that proposals should be subject to more scrutiny under the traditional primary legislation route? If the Government do indeed reject the amendment tabled by the hon. Member for Cambridge, that would be thoroughly unreasonable.
As I said in answer to the hon. Member for Edmonton, my concern as regards the suppression of individual rights, is that we are often talking just about one case, which has been brought up by one Member of Parliament. If a constituent, group of constituents or town is adversely affected by a piece of legislation that is pushed through using the accelerated procedure before us, should a responsible Member of Parliament not have the opportunity to veto it or to have it vetoed by bringing other Members together?

Andrew Love: The hon. Gentleman’s comments made me think of an order that went through in the previous Parliament to end the last vestiges of the Sunday Observance Act 1780. One Member, or perhaps even 50 Members, might feel that that was inappropriate, but the overwhelming majority of Parliament might not. How do we ensure that in protecting Members’ rights we do not lose the essential business of Parliament?

Christopher Chope: Essentially, we ensure that measures are brought forward using the primary legislative route unless they are non-controversial. As we know, the Government could use the provisions of the Bill more or less to remove the need for any of the soft handout Bills that are given to those who are lucky enough to win the private Members’ ballot. Those Bills would no longer be necessary because they could be dealt with by the accelerated procedure. The Government might regret the demise of soft handout Bills and find it embarrassing to be confronted with much more controversial legislation on Fridays.
To deal with the hon. Gentleman’s point, he knows, as a veteran of debates on Fridays, that the fact that only one person has objections to a piece of legislation does not mean that they are in the wrong. Quite often, the points made in the debates on Fridays are responded to by the promoter of the Bill or the Government, and people realise that Parliament by definition contains a host of individuals with specialist knowledge of various subjects—not generalists, knowing about everything—who understand and know how to probe in relation to certain proposals. We know that the one or two Members who object to a piece of private Member’s legislation might be right.

Andrew Love: I put it to the hon. Gentleman that if the Regulatory Reform Committee thought that one Member or 50 could veto the lengthy consultation and other necessary procedures that a Department has to go through to bring forward an order, all possibility of using that mechanism would in effect be ended.

Christopher Chope: The hon. Gentleman’s suggestion prompts the question whether that lengthy consultation process has addressed the consultees’ concerns. So often we see the Government going through the process of consulting but not responding to the views that are expressed in that consultation. The hon. Gentleman is jumping to the conclusion that consultation alone is a necessary safeguard, but consultation is a safeguard only if the Government respond to it. What better way could there be of ensuring that they do respond than to have an effective veto, which is the substance of amendment No. 52? Such a veto would not come from one individual Member but 50 hon. Members and would have to be exercised pretty quickly. It would not be a veto on the substance of the legislation but on the process by which it could be put on the statute book. That seems a perfectly reasonable suggestion.
Amendment No. 53 is also an important safeguard, to which I hope that the Minister will respond positively. If we are talking about two Houses of Parliament, there is not much point in having the  accelerated procedure if it removes all rights from the other place to engage in debate on legislation that is brought forward under that procedure. We know that the powers that are being taken are so extensive that they could be used to have another go at aspects of legislation that the other place has already disapproved of. I hope that when we resume this afternoon the Minister will say that he thinks that the proposals are a good starting point for the veto process.

Jim Murphy: I take the opportunity to respond briefly to the debate on the clause so far. The hon. Member for Cambridge referred to the power of the  Front Bench. I erred by not welcoming on behalf of the Committee the hon. Member for Forest of Dean to his position on the Front Bench—I am not damning him by mentioning that, but congratulating him. He is a defence spokesman for the Conservative party, and we welcome him to his place and welcome the reasonable tone that he strikes from the Front Bench.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.